STATOIL NIGERIA LTD. V. INDUCON (NIG.) LTD. & ANOR.(2)
(2012)LCN/5448(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of June, 2012
CA/L/284/2011
RATIO
“Also, we must note that where there is an allegation of fraud, the period of limitation commences from when the Respondents discovered the fraud. Thus the Respondents claim was not statute barred. See Williams v. Williams (2008) 10 NWLR Pt 1094 Pg.364 at 383. It is my view that the cause of action arose in 2009 when a demand was made for the actualization of the promises between the parties.” Per OGUNWUMIJU, J.C.A.
“The 3rd point of objection raised by learned senior counsel for the Respondents is that the Appellant argued ground 12 which is the omnibus ground of appeal as an issue for determination in issue 8. Learned senior counsel argued that an issue must be distilled from the omnibus ground for it to be arguable. A party cannot argue the omnibus ground alone without distilling an issue from it. I found no direct answer to this point in the Appellant’s reply as copious as it was in answering some other points of objection. Suffice it to say however that where the omnibus ground of appeal is raised to wit that the judgment is against the weight of evidence, the Appellant is in fact complaining against the totality of the evidence adduced at the trial but cannot use the ground to complain against an error of law or finding of fact made by the trial judge. See Akinlagun v. Oshogboja (2006) 12 NWLR Pt.993 Pg. 60. My examination of the arguments of learned Appellant’s counsel in issue 8 distilled from the said omnibus proferred by the Appellant in this regard is consistent with what is acceptable.” Per OGUNWUMIJU, J.C.A.
“A court has the inherent jurisdiction to grant consequential orders so that proper effect is given to its judgment. A court therefore, is not functus officio in granting ancillary reliefs that will ensure that its judgment is complied with. The Plaintiff asked for account reliefs, therefore the trial court had the power and was not functus officio to grant consequential reliefs to ensure that the appointed auditor can properly carry out his duties in determining the actual proceeds from the oil concessions in issue and the actual proportion of the proceeds the Respondents are entitled to. In Amaechi v. INEC (2008) 5 NWLR Pt. 1080 Pg.227 at pg. 393 -394, the Supreme Court held that: “A consequential order is one giving effect to the judgment which it follows; it is not an order made subsequent to a judgment, which detracts from the judgment or contains extraneous matter. Thus, where a person has not specifically asked for a relief from a trial court, a trial court has power to grant such a relief as a consequential relief. Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 Pg. 360; Obayagbona v. Obazee (1972) 5 SC 247; Garba v. University of Maiduguri (1986) 1 NWLR Pt. 18 Pg. 550; Okupe v. FBIR (1974) 1 ALL NLR 314 referred to.” Per OGUNWUMIJU, J.C.A.
“I agree that proliferation of issues is frowned at See Odofin v. Oni (2001) 3 NWLR Pt.701 Pg. 488.” Per OGUNWUMIJU, J.C.A.
“The main complaint in this issue by the Appellant is that the learned trial judge made an issue suo motu that the Appellant inherited BP’s interest in the oil well presently being exploited and held that the Appellant inherited the profit interest agreement of 12th November, 1993. It is my view that the trial court can make a finding of fact based on the various evidence presented by both parties before it. If in couching that finding, it uses words different from the pleadings of the parties, the finding cannot be held perverse or unpleaded. This is in so far as such findings can be borne out of the pleadings as couched and facts and the evidence led. After all, it is only the facts that are pleaded and not the evidence to support the facts. See Pascutto v. Adecentro Nig. Ltd (1997) 11 NWLR Pt.529 Pg. 467 at 491. Where the evidence supports the facts pleaded, the trial court cannot be held to have raised issues of facts suo motu where it makes findings of facts in that regard. To do justice in any matter, it is the duty of the trial court to consider all the evidence proffered by all the parties, ascribe probative value to them, make definite findings of fact, apply relevant law and come to a conclusion. I cannot fault the learned trial judge on this issue. See Abubakar v. Joseph (2008) 13 NWLR Pg.1104 Pg. 307.” Per OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
STATOIL NIGERIA LTD. Appellant(s)
AND
1. INDUCON (NIG.) LTD.
2. DR. JOHN ABEBE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice C. E. Archibong of the Federal High Court Lagos, delivered on 6th December, 2010. The learned trial judge had given judgment to the Plaintiffs and made sundry orders on their behalf. The facts that led to this appeal are as follows:
The Plaintiffs, a Nigerian registered company and a Nigerian businessman, sued for enforcement of profit interest in the production of Nigerian offshore oil fields which they claim they are entitled to from a locally incorporated Norwegian oil producer; and for an accounting of all profit thought to have been made since the said production began; together with payment over to them of all accrued earnings arising from said profit interest.
At the trial court, the Claimants now Respondents asked for the following orders.
“i. A declaration that the plaintiffs are entitled to a net profit interest of 1.5% out of the Defendant’s interest in the Agbami field in consideration of the business development successes it achieved for the Defendant.
ii. A declaration that the plaintiffs are entitled to a net profit interest of 1.5% in any and all of the Defendant’s oil and gas interests resulting from the business development efforts of the plaintiffs.
iii. An account of all sums accruing to the Defendant from the Agbami field, together with a statement of projected earnings in respect thereof.
iv. An account of all income due to the plaintiffs from the Defendants in respect of accrued income from the upstream petroleum activities of the Defendant.
v. An account of all income received from or accruing to the Defendant in respect of its upstream activities in Nigeria.
vi. An order for payment by the Defendant to the Plaintiffs of all sums found to be due from the Defendant to the plaintiff on the taking of the account under iii above, and interest on such sums as the court may deem fit from date of first production until judgment.
vii. An order compelling the Defendant to render full and proper accounts as at the date of this action, of all crude oil accruing to the Defendant from the Agbami field operations.
viii. An order compelling the Defendants to deliver up and submit to the plaintiff, details of payments received in respect of the concession interests in Nigeria.
ix. An order of payment of all income derived from all the upstream production available to the Defendant into an interest bearing account with a reputable financial institution within the jurisdiction of this court and subject to the directions of the Honourable Court, pending the determination of this action.
Pleadings were filed, evidence led and issues joined by the parties. At the end of the trial the learned trial judge made some findings of fact. From page 2155A-2161 and Vol. 5 of the record, they are stated below:
“a) I find as fact that the 2nd plaintiff made an approach to BP in 1990 offering to help reintegrate them in the Nigerian Oil Industry having had their interests in this country expropriated in the 1970’s.
b) I find as fact that the Plaintiffs and BP were partners of choice in this enterprise, BP having accepted to engage the 2nd plaintiff as a pathfinder and a long term collaborator. This relationship was Nigeria – specific, BP being an International Oil Producer with a global reach.
c) BP at about the same time or shortly after it had reached understanding with the second Plaintiff entered into an Alliance with Statoil, a strategic alliance for Research and Developments, Gas transportation and Marketing, International Exploration and Production with three areas in the world in mind – West Africa (Nigeria to Angola) China Margin (Northern China to South Vietnam) and the Soviet Union, Areas in which Statoil had no prior involvement.
d) At the time BP and Statoil entered into this Alliance, the former was not in Nigeria having had its interests in Nigeria expropriated in the 1970’s and the latter never operated in this country at all.
e) The only identifiable and identified Business Development Partner for the Nigerian effort for BP, for Statoil, for the Alliance was the 2nd Plaintiff whom BP introduced to Statoil soon after BP and Statoil entered their Alliance.
f) Loose or otherwise in whatever other part of the globe; in Nigeria BP and Statoil were joined at the hip in their bid and effort to enter the Nigerian Oil Industry.
g) The Alliance had a joint operational base in Nigeria, incorporated companies in which both had equal interest and staffed and managed with pooled personnel in both the Nigerian incorporated companies that bore their individual names.
h) The interests of BP and Statoil in Nigeria were pursued on the basis of a 50:50 Equity and their applications for oil concessions from the Federal Government of Nigeria were made jointly; and their prospects for the development of their business in Nigeria be it as BP, as Statoil and/or as the BP/Statoil Alliance, centred on the Plaintiffs. The 2nd Plaintiff was the sole Nigerian collaborator for this push into the Nigerian Oil Industry.
j) BP could have chosen to make the push into Nigeria on its own but did not. Statoil could have chosen to make the push into Nigeria on its own but did not; the BP/Statoil Alliance could have chosen to make the push into Nigeria on their own but did not. It was decided by BP, it was decided by Statoil, it was decided by the BP/Statoil Alliance to collaborate with the 2nd plaintiff in the development of business in the Nigerian oil Industry…………
j) I find as fact from the totality of the testimony deposed and orally given and from the Exhibits tendered and admitted in evidence, that BP concluded a long term remuneration and participation agreement with the Plaintiffs in relation to the initial petroleum interests to be awarded BP in Nigeria; BP’s interest being defined as BP’s fifty per cent (50%) participating interest in each of the blocks and each of the production sharing contracts (PSCS)”.
k) The one and one half per cent ceded by BP to Inducon Nigeria Limited on the 12th November, 1993 signified a long term commitment by BP to the Nigerian Oil Industry (already as it was) IN ALLIANCE (emphasis mine) with Statoil; hence the reference to BP’s 50% participating interest.)
l) This commitment was not abrogated or abandoned or cancelled by the Termination Agreement dated 28th May, 1997 between JOHN ABEBE, INDUCON OVERSEARS, STATOIL (NIGERIA) LIMITED and BP EXPLORATION (NIGERIA) LIMITED (BP) EXHIBIT D18, FILE B. See clause 9 (a) and (b)
m) I find as fact that though Statoil initially, most probably following Bp’s lead indicated an intention or willingness to enter a long term Net profit/Royalty agreement with INDUCON “to be negotiated at a late date”, the parties never put pen to paper, and Statoil later actively resisted such an arrangement or agreement with the Plaintiffs or either of them.
n) I find as fact however, regardless of whether it is disputed or not, represented accurately or not in the pleadings or in the final submissions, given the totality of testimony deposed and orally presented, and from the exhibits tendered and admitted in evidence, that the Plaintiffs BP, and the Defendant proceeded within the public policy framework articulated by PW3 Dr. A. B. Oyekan MFR in his deposition and oral testimony, which is to say on the basis of a long term equitable and/or beneficial participation of a Nigerian collaborator such as the 2nd Plaintiff in the circumstances of this Oil Industry Venture.
o) Whatever the laws and regulations stipulated, the public policy framework enunciated by Dr. A.J. Oyekan MFR PW3 underpinned the conduct, exertions and commitments made by BP, Statoil and the Plaintiffs in this Nigerian Oil Industry Business Development effort with understandings and agreements were reached which though enforceable were unperfected in parts.”
Thereafter the learned trial judge made in effect the following consequential orders:
a) The specific performance of the Respondents’ 1.5% net profit or leasehold Interest Agreement with the Appellant in respect of all Appellant’s oil and gas interests in Nigeria to be enforced by the Ministry of Petroleum Resources, the Department of Petroleum Resources, the Nigerian National Petroleum Corporation, the Ministry of Finance, the Federal Inland Revenue Service and the Nigerian Customs Service.
b) The appointment of the firm of J. K. Randle Professional services to conduct a forensic audit of all the Appellant’s relevant accounts with access to all relevant data bases both with the Appellant and regulatory and tax authorities as relates to the Respondents’ 1.5% equity stake in Appellant’s portfolio of Oil Mining Leases granted to it by the Federal Government of Nigeria.
c) The Appellant’s payment of the sum of N=150,000,000 (One Hundred and Fifty Million Naira) only into court being the fund from which J. K. Randle Professional Services will be paid their expenses and fees and if the amount is not sufficient, Appellant will be required to pay more.
d) A Direction to the Department of Petroleum Resources and the Ministry of Petroleum Resources to approve and register the Respondents’ 1.5% equity stake in the encumbered 50% of the Appellant’s interest in Oil Mining Leases granted to it by the Federal Government of Nigeria.
e) A direction to the Department of Petroleum Resources and the Ministry of Petroleum Resources to fix the Respondents’ long term equity in the 50% unencumbered interests of the Appellant in oil Mining Leases granted to it by the Federal Government of Nigeria, using the Respondents’ 1.5% equity stake in the Appellant’s encumbered 50% as a benchmark,
f) An injunction restraining the Appellant from alienating, transferring or passing on all or part of its interests in any of the oil concessions in issue and non-repatriation of its profits pending the determination of the appropriate accounts, inquiries and further direction of the court to give effect to the terms of the judgment.
Hence this appeal. The Appellant’s brief was filed on 7th March, 2011 while Appellant’s reply brief was filed on 18th November, 2011 and deemed filed on 12th March, 2012. The Respondents’ brief was filed on 21st October, 2012 but deemed filed on 12th March, 2012.
During the hearing of the appeal, the Respondent moved the preliminary objection dated 5th October, 2011 which had been argued in the brief. I will deal with that first. Uche Nwokedi SAN learned counsel for the Respondents had argued that the grounds of appeal and issues for determination are incompetent and should be struck out. The first argument of learned Respondents’ counsel is that some issues were formulated repeatedly from the same grounds of appeal and the argument of the same sub-issues under different issues offend the rule against proliferation of issues and such issues should be completely disregarded. He cited Agu v. Ikeuibe (1991) 3 NWLR Pt. 180 Pg.385 at 401, Kalu v. Ohuabunwa (2004) 7 NWLR Pt. 871 Pg. 1, Hahir v. BON (2007) All FWLR Pt. 388 Pg. 1072 at 1090.
In reply to this point, learned Appellant counsel Fidelis Odita SAN argued that there is no proliferation of issues in the Appellant’s brief since proliferation means formulating more issues than the grounds of appeal. He cited Enigbokan v. Baruwa (1998) 8 NWLR Pt. 560 Pg. 96 at 107A; Udoh v. Asuquo (2006) 9 NWIR Pt. 985 Pg.299; Eke v. Ogbona (2006) 18 NWLR Pt. 1012 Pg. 506. He argued that mere cross referencing of one issue from one ground to another or an earlier paragraph cannot make the issue incompetent. He claimed that the complaint that a few arguments in the Appellant’s brief cross refer to other paragraphs in the same brief is to no issue as such cannot constitute proliferation of issues for determination.
I have looked closely at the complaint highlighted on this point by learned Respondents’ counsel. I am of the view that it is rather a case of repetition of arguments rather than a proliferation of issues. I agree that proliferation of issues is frowned at See Odofin v. Oni (2001) 3 NWLR Pt.701 Pg. 488. There is no doubt that the Appellants cannot be faulted for formulating eight issues from 12 grounds of appeal. The only inelegance in their brief of argument is the continuous repetition of the same arguments under different issues. For instance points 70 and 72 on inheritance of B.P’s interest argued under issue 2 was also argued in issues 1 and 3; points 79 and 80(c) on injunction argued under issue 3 was also repeated under issues 4 and 5; points 38, 39 and 40 under issue 1 on lack of ministerial consent and requirement of a deed are also argued in point 108 under issue 4; points 33, 34 and 35 under issue 1 on privity of contract are also argued in points 96, 97 and 98 of issue 3; points 74 and 80 under issue 3 on government policy are also argued in issue 6; and points 174 and 175 under issue 8 are also argued under issues 1, 4, 6 and 7.
I personally tend to take a liberal rather than strict a view of such lapses in the briefs of counsel. In this case therefore, I am of the view that arguments are not issues. Even though repetition of the same arguments over and over again as being complained about in this case can be annoying, it cannot lead to the issues or such arguments being struck out. It is the unnecessary division of what should be a single issue into several ones that is found prolix and is liable to be struck out. In this case there is no proliferation of issues but rather an annoying repetition of the same arguments at every turn. As already conceded in paragraph 15 (i) of the Appellant’s reply, the argument with reference to grounds 6 and 11, in paragraphs 73 -99 is hereby struck out. The arguments in paragraphs 73 -99 which are in issue 3 are a repetition of arguments already preferred. Issue 3 is struck out. That point of objection is overruled in part in favour of the Appellant.
The second point of complaint raised by the Respondent is that Ground 9 of the notice of appeal is incompetent. Learned senior counsel for the Respondents argued that a document dated 30th November, 1995 was sought to be tendered by the Appellant which was objected to. The learned trial judge upheld the objection on 24th June, 2010 and rejected the document. Ground 9 of the notice of appeal field on 18th January, 2011 constitutes an appeal against the ruling of the trial court delivered on 24th June, 2010. He also contended on this point that the particulars set out in the grounds do not arise from the records of what transpired at the trial court and this court cannot draw conclusions not supported by the records. He submitted that ground 9 as a whole is incompetent and the issue 7 distilled therefrom being also incompetent, both should be struck out.
Learned senior counsel for the Appellant replied that the document was tendered during the trial and rejected. He drew our attention to page 1590 Vol. 4 of the Record. He submitted that the rejection and admission of a document during trial is part of the main trial and not an interlocutory decision therefore a party challenging that decision can make same part of his grounds of appeal in the main appeal. He cited Ukpo v. Imoke (2009) 1 NWLR Pt. 1121 Pg. 90; Onwe v. Nwaogbuinya (2001) 3 NWLR Pt. 700 Pg. 406.
I am in complete agreement with learned Appellant’s counsel that the Appellant can validly raise ground 9 of the grounds of appeal in the notice of appeal filed in this court on 18th January, 2011. No special complaint by way of interlocutory appeal was filed against the ruling and it can therefore be part of the complaints in the appeal since the rejection of the document was a decision during the main trial. This is because a decision of a trial court which amounts to a wrongful admission or rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made of the issue see Ukpo v. Imoke supra at page 128. This point is resolved in favour of the Appellant and the point of objection is overruled.
The 3rd point of objection raised by learned senior counsel for the Respondents is that the Appellant argued ground 12 which is the omnibus ground of appeal as an issue for determination in issue 8. Learned senior counsel argued that an issue must be distilled from the omnibus ground for it to be arguable. A party cannot argue the omnibus ground alone without distilling an issue from it.
I found no direct answer to this point in the Appellant’s reply as copious as it was in answering some other points of objection. Suffice it to say however that where the omnibus ground of appeal is raised to wit that the judgment is against the weight of evidence, the Appellant is in fact complaining against the totality of the evidence adduced at the trial but cannot use the ground to complain against an error of law or finding of fact made by the trial judge. See Akinlagun v. Oshogboja (2006) 12 NWLR Pt.993 Pg. 60. My examination of the arguments of learned Appellant’s counsel in issue 8 distilled from the said omnibus proferred by the Appellant in this regard is consistent with what is acceptable.
The Appellant’s counsel on that issue tried to convince us that the weight of evidence was in favour of the Appellant. That is as it should be. In the circumstances that point of objection cannot be sustained and is hereby overruled.
On the last point of objection learned Respondents’ senior counsel argued that arguments contained in the brief are based on documents not tendered at the trial court. Senior counsel submitted that ground 1 with issue 1, grounds 10 and 11 with issue 7 formulated therefrom should be struck out as incompetent.
Learned Appellant’s counsel in paragraph 20 of the reply concurred in reply that where the appellate court refuses new evidence on appeal paragraph 43 and 48 of the Appellant’s brief may be ignored by the court. Suffice it to say that a ruling of this court was delivered on 12th March, 2011 in which the motion filed on 7/3/11 to adduce fresh evidence in this court was refused. In the circumstances any and all arguments in the Appellant’s brief relating to those documents cannot be countenanced. Such arguments as conceded by the Appellant contained in paragraph 43 and 48 of the Appellant’s brief are hereby struck out. The preliminary objection succeeds in part. However, its partial success has not affected the issues submitted for determination by the Appellant.
The senior counsel for the Appellant identified eight issues for determination as follows:
“1. Whether the learned trial judge decided issues which were not pleaded and in respect of which no evidence was led at trial (“unpleaded issues’,)
2. Whether the learned trial judge denied the Appellant a fair hearing (“fair hearing”)
3. Whether the learned trial judge granted the Respondents reliefs which were not sought (“unsought reliefs”)
4. Whether the learned trial judge failed to decide issues submitted for his decision (“undecided issues”)
5. Whether the learned trial judge had power to grant a post judgment interlocutory injunction freezing all the Appellant’s revenues indefinitely (“interlocutory injunction”)
6. Whether there was a public policy framework entitling Nigerians to 1.5% equity interests in oil and gas assets of foreign companies (“public policy,’)
7. Whether the learned trial judge should have admitted a photocopy of a forged document and rejected the original and correct version of the same document (“admissibility of evidence”); and
8. Whether the judgment is against the weight of the evidence adduced at trial (“omnibus ground”).
On the other hand senior counsel for the Respondents submitted only two issues for determination set out below:
“1. Whether the judgment appealed against was made after a proper consideration of the facts, and an evaluation of the evidence of the parties? (Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12 of the grounds of appeal.)
2. Whether the trial court was right to admit in evidence Exhibit BB tendered by the Respondents and reject the Appellant’s document dated 30th November, 1995. (Distilled from grounds 9 and 10 of the grounds of appeal.”
I will adopt the issues submitted for determination by the Appellant’s counsel except for issue 3 which has already been struck out. They are numerous but best represent comprehensively the complaints raised in the grounds of appeal.
ISSUE ONE
Senior counsel for the Appellant argued that the finding of fact made by the learned trial judge to the effect that BP’s interest in production sharing contract were taken over by Statoil is wrong and based on unpleaded facts. He argued that none of the findings of fact was pleaded. No evidence was led by any party in relation to the issues and no relief was sought by the Respondents in relation to any of the issues. He submitted that it is trite that parties are bound by their pleadings and will not be permitted to set up a case different from their pleading. He cited Union Bank v. Ishola (2001) 15 NWLR Pt. 735 Pg.47 at 71. He said once pleadings are ordered, filed and exchanged, the parties and the court are bound by the pleadings so filed. He argued that it therefore follows remorselessly that evidence must be led in accordance with the pleadings. He cited Anyanwu v. Iwuchukwu (2000) 12 NWLR Pt. 692 Pg.721 at 7273. He insisted that a trial court has no power unilaterally to create unpleaded issues for the parties or to make findings on such issues without evidence or to make binding determinations of the parties’ civil rights and obligations on the basis of the unpleaded issues and unproven facts or assumptions.
He further cited the following cases:
Irom v. Okimba (1998) 3 NWLR Pt. 540 Pg. 19 at 25; University of Calabar v. Essien (1996) 10 NWLR Pt. 477 Pg.225 at 260 – 261; Okweji Minor v. Gbakeji (2008) 5 NWLR Pt. 1079 Pg. 172 at 222-223; A.G. Federation V. A.I.C. Ltd (200) 10 NWLR Pt. 675 Pg.293 at 305 – 306; FAAN v. Greenstone Ltd (2009) 10 NWLR Pt. 1150 Pg. 624 at Pg, 643, 650, Amadi v. Chinda (2009) 10 NWLR Pt. 1148 Pg. 107 at 134 – 135.
Senior counsel complained in particular that:
a) the Respondents did not allege that their net profit interest agreement with BP of 12th November, 1993 was assigned to or inherited by the Appellant, yet the judge held that the agreement was inherited by the Appellant.
b) The Respondents did not allege that BP owed them any outstanding obligations under the 12th November, 1993 net profit interest agreement which subsisted, yet the judge held that the obligations were subsisting and enforceable.
c) The Respondents gave no evidence that the Appellant inherited BP’s oil interest, yet the judge found as a fact that the Appellant did inherit the interest.
d) The Respondents did not seek specific performance of the net profit interest agreement with BP and BP was never a party to the proceedings, yet the judge granted specific performance of the agreement against the Appellant a non-party to that agreement, in breach of the elementary privity of contract doctrine that a non-party cannot have enforced against him the obligations under a contract.
He complained that the learned trial judge unilaterally raised and resolved these issues, as it turned out, upon incorrect assumptions as to the underlying facts, without giving the parties any opportunity to address him against the Appellant.
Senior counsel complained that the learned trial judge was wrong when he held that the net profit interest agreement between BP and the Respondent of 12th November, 1993 was a burden which was enforceable against the Appellant as a supposed transferee of BP’s 50% interest in the oil blocks.
He cited Chemical and Allied Products v. Vital Investments (2006) 6 NWLR Pt. 976 Pg. 220 at 264 -265; Basinco Motors v. Woemannbee (2009) 12 NWLR Pt. 1157 Pg. 149 at 180; Chartered Brains Ltd v. Intercity Bank (2009) 15 NWLR Pt. 1165 Pg.445 at 461.
Learned senior counsel for the Appellant further on this issue argued that the burden of a contract, such as the 1993 net profit interest agreement, cannot be shifted or transferred to a third party (such as the Appellant) unless he consents. If he does, the burden is said to be novated. He cited Telhurst v. Associated Portland Cement Manufacturers (1900) Ltd (1902) 2 KB 660 at 668. He argued that no order of specific performance can be made against the Appellant as a non party to the agreement between Bp and the Respondents.
Learned Respondents’ counsel in reply submitted that the duty of this court is not to retry the case but rather, to review the record of proceedings and see whether the trial court based its decision on the case before it; whether the trial court evaluated the evidence presented before it; whether the trial court made any findings of fact and if it did; and whether the findings of facts made by the trial court in reaching its conclusions were based on a proper evaluation and assessment of the evidence before it. Once these considerations are in the affirmative, this Honourable Court cannot interfere with or disturb the decision of the trial court. Furthermore, counsel argued that for this appeal to succeed, the Appellant has to prove to this Court that each and every one of the 15 findings of fact made by the trial judge was made outside of the pleadings and evidence of the parties, and as such are “perverse and deeply flawed” and thereby constitute serious “adjudication sins”, as alleged by the Appellant, bearing in mind that on the authority of Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 171, it is not a question of style, but one of substance.
Counsel then argued that there was absolutely no issue taken suo motu in this case from pleadings and evidence. He submitted that the Appellant’s argument at paragraphs 70-72 of its brief are not tenable because during the hearing of the case, two of the Appellant’s witnesses, Rolf Magne Larsen DW1 gave evidence of the exit of BP from Nigeria and the oil concessions in question. Also, in the witness statement of Mr. Gbenga Biobaku – DW4, he confirmed that “BP withdrew in 1999 from oil prospecting licenses 213, 217 and 218, while Statoil remained”. In addition, the Appellant tendered the production sharing contract for the concessions, which was admitted in evidence as exhibit D31 confirming that the oil concessions in question were granted to the BP/Statoil partnership. It is worthy of note also that the Appellant tendered exhibit D19, the statutory report of Statoil for 2008, showing there was a transfer of BP’s interest to Statoil, when BP left Nigeria.
He submitted that the validity and subsistence of the net profit agreement NP1A was evidenced by the provisions of the NP1A itself particularly Exhibits PE21 and D14, clauses 10(b) and (c) and 11(b) (i) and [ii).
The NP1A agreement was tendered as Exhibit D14 by the Appellant.
Learned senior counsel for the Respondent emphasized that the partnership relationship between BP and Statoil was a material fact that was pleaded in detail and supported by evidence adduced [including admissions under cross-examination). Other material facts include the 50:50 cost sharing and joint obligations representations of the BP/Statoil partnership. In addition, the entitlement to a net profit interest in respect of the concessions procured was pleaded as a material fact, and proved in evidence. Appellant’s evidence to counter this pleading actually confirmed that Statoil inherited BP’s interest.
Senior counsel insisted that the obligation to assign a minor percentage leasehold interest by the partnership of the Appellant and BP was pleaded as a joint and several undertaking of the Appellant with Bp, and proved in evidence. The consistent case of the Respondents as pleaded was that having created the opportunities for the BP/Statoil partnership, its entitlement to the net profit interest was derivable from production from the concessions. In answer to the Appellants position that there was no privity of contract between the Appellant and the Respondents, senior counsel for the Respondent argued that such a position is not tenable in this case. He argued that Statoil was a partner, and not a third party. This was pleaded and canvassed by the Appellant in the trial court as a counter to the position of the Respondents that the relationship between the Appellant and Bp was a partnership, and that being a partnership, the Appellant was bound by the obligations BP created in advancing the business interest of the BP/Statoil partnership in Nigeria. It was a specific finding of fact by the trial court based on the pleadings and the evidence that Statoil and BP were partners in Nigeria, “joined at the hip”. He pointed out that there is no ground of appeal challenging the finding of partnership.
Senior counsel to the Respondents concluded on this issue that senior counsel for the Appellant’s arguments on unpleaded issues do not arise from the findings of the trial court or supported by the record of proceedings. He claimed that the finding of the trial court that the Respondents are entitled to a net profit interest of 1.5% of the concession was specifically pleaded and sought as a relief. He claimed that the findings and reliefs must be upheld as granted.
I have read the judgment of the trial court. On this issue, the learned trial judge held at page 2164-2165 of the Record as follows:
“I am particularly taken however by the question the parties therein agreed to proceed on at the trial court in the aforementioned case; that is; whether there was concluded any enforceable agreement in law between the plaintiffs and the Defendant(s) or one of them and if yes who were the parties to the agreement and what were its agreement. That is exactly the question that confronts us here however it is approximated in the pleadings by the parties before me and in the final submissions of senior counsel. I find that Statoil took on the commitments of BP in relation to business development in Nigeria; and I find that the current Oil Mining Licenses (OML) directly result from the re-entry though temporary by choice, of BP into the Nigerian Oil Industry with Statoil’s peggy backing on BP. specifically when BP decided to quit Nigeria upon whatever terms agreed with its partner, it 50% interest in production sharing contracts prospective at the time were taken over by Statoil. That 50% interest was encumbered with a 1.5% net profit interest in favour of the 1st Plaintiff. That interest subsists and is enforceable. The equity is not a transferred interest but an embedded interest that came alive upon the commencement of production in oil fields in which the Defendant currently has equity or operating interest.”
In fact from the records, the Respondents had pleaded extensively the details of the relationship between BP and Statoil which had an Alliance, particularly the fact that it was a partnership based on a 50.50 sharing arrangement. The fact of the Alliance document which defined the partnership was admitted as Exhibit PE1. The production sharing contract which confirmed the grant of the oil concession was pleaded and tendered as Exhibit PE57 and D31. The efforts of the Respondents to bring the Appellant into Nigeria and develop its business was pleaded and in my view proved on a balance of probabilities. The issue in controversy at the court below and the findings of fact we are asked to review is whether or not the Respondents were entitled to the 1.5% interest in the oil producing well expressed as a net profit interest. At page 925 – 934 Vol. 3 of the Records, paragraphs 8, 9, 10, 11, 12, 13, 14, 16, 19 and 20 of the amended statement of claim was consistent with the findings of the trial judge that the Respondents’ interest was contained or embedded in the production proceeds of the assets of the Appellants. This was pleaded in detail and the Respondents tendered Exhibit PE19, PE21 and PE22. I have reviewed the evidence of the trial court and I am of the opinion that the findings of the said court cannot be faulted. The Respondents proved that they worked to use their connections to develop the business of the BP/Statoil Alliance. See Mr. C.A. Wright’s letter of 12th September, 1993 where it was stated inter alia that:
“……I can confirm and allay your worries that BP and Statoil will give you a net profit interest as agreed and stated in our memorandum of understanding in 1991, titled the Alliance.,……..”
See page 2135 of the Record vol. 5 Similarly Steven P. Edrich’s letter of 10th December, 1993 to the 2nd Respondent stated inter alia.
“Congratulations once again for getting the Net Profit Interest with BP in place. I hope you can now approach Statoil and conclude a similar NP1 as agreed by the Alliance”
See Pg.2135 of the Record, Volume 5.
The 2nd Respondent had said under re-examination that even though he signed an agreement with BP in November 1993, he did not sign the same with Statoil because they told him he should wait until actual production started. To further induce the Respondents, the Appellant granted the 2nd Respondent some of its founder’s shares and appointed him as a Director and vice chairman of the company. The entire Respondents’ witnesses testified to the nature of the partnership called “Alliance” between Bp and Statoil. In effect they were joined at the hip as it were in all their endeavours and agreements. The evidence on record shows that the Appellant kept on promising the Respondents the Net Profit agreement that would be effected immediately production started while inducing him with tidbits. I am of the view that there was abundant proof that the Alliance comprising of BP and Statoil made certain representations to the Respondents by which they were both bound. The issue of lack of privity of contract does not arise since the Alliance was a party on one hand and the Respondent was a party on the other hand. I am of the view that the first issue of whether the trial judge decided the case on unpleaded issues must be resolved against the Appellant.
ISSUE TWO
On this issue, learned Appellant’s counsel argued that the learned trial judge denied the Appellant its constitutionally guaranteed right to a fair hearing by failing to give it any opportunity to state its case or adduce evidence or address the court on the questions of whether it inherited BP’s 50% interest in OPL 213 or in OMLs 128 and 129; whether the net profit interest agreement of 12 November, 1993 remained valid and extant, and if it is, what remedial consequences attend the supposed inheritance. Senior counsel opined that the lower court’s denial of fair hearing led to a miscarriage of justice because it led to factual assumptions which are wrong and reliefs which are factually and legally impossible to sustain. He cited Effiom v. GRSIEC (2010) 14 NWLR Pt. 1213 Pg. 106.
Senior counsel for the Appellant complained that the learned trial judge raised the issue of whether the Appellant inherited Bp’s 50% interest in OPL 213, OMLs 128 and 129 suo moto without allowing the parties to be heard on the issue of fact. He alleged that this led to the learned trial judge making six out of seven orders on the basis of the BP inheritance finding. He cited University of Calabar v. Essien (1996) 10 NWLR Pt. 477 Pg. 225 at 247; Obanta v. Ajayi (2002) FWLR Pt. 92 Pg. 1716; Omokhodion v. FRN (2006) FWLR Pt.292 Pg. 1 at 19.
Learned Respondents’ counsel argued in contention on this issue, that the Appellant does not claim that its ability to present its best case was impeded in any way, nor has it claimed that it did not have the same or equal opportunity to present its case. It contends strangely instead that the judgment of the court in this regard is premised on a single finding which is without foundation.
Counsel insinuated that the cry of lack of fair hearing therefore by the Appellant is more related to the fact that judgment went against it and with the power of hindsight, it now seeks to address certain lapses, hence the application to adduce fresh evidence. Counsel submitted that it is a surreptitious attempt to have a second opportunity to re-present the case, even though the additional evidence would not have affected the outcome of the trial.
I have to agree with the argument of learned senior counsel for the Respondents that in general the entire trial was fair, in that equal opportunity was given to both sides to present their case. The Appellant called five witnesses, DW1 to DW5, whilst the Respondents called three witnesses, PW1 to PW3. All the witnesses of both parties adopted their respective written statements on oath and opposing counsel were allowed by the trial court to cross-examine the witnesses of the other party. The Respondents tendered 57 documents out of which, one document was rejected while 56 documents were admitted as Exhibits PE1 to PE57, AA and BB. On the other hand, the Appellant tendered 37 documents out of which one document also was rejected while 36 documents were admitted as Exhibits DE1 to DE36. Both parties could have tendered more, if they had so desired. Final written addresses were filed and served, and the Appellant exercised its right to file a written reply, before oral adoption of the written addresses. Thereafter, the trial court adjourned the matter to 6th December, 2010 for judgment. In Pam v. Mohammed (2008) 16 NWLR Pt. 1112, Pg.1 at Pg 48, the Supreme Court held as follows:
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment……….”
The main complaint in this issue by the Appellant is that the learned trial judge made an issue suo motu that the Appellant inherited BP’s interest in the oil well presently being exploited and held that the Appellant inherited the profit interest agreement of 12th November, 1993. It is my view that the trial court can make a finding of fact based on the various evidence presented by both parties before it. If in couching that finding, it uses words different from the pleadings of the parties, the finding cannot be held perverse or unpleaded. This is in so far as such findings can be borne out of the pleadings as couched and facts and the evidence led. After all, it is only the facts that are pleaded and not the evidence to support the facts. See Pascutto v. Adecentro Nig. Ltd (1997) 11 NWLR Pt.529 Pg. 467 at 491. Where the evidence supports the facts pleaded, the trial court cannot be held to have raised issues of facts suo motu where it makes findings of facts in that regard.
To do justice in any matter, it is the duty of the trial court to consider all the evidence proffered by all the parties, ascribe probative value to them, make definite findings of fact, apply relevant law and come to a conclusion. I cannot fault the learned trial judge on this issue. See Abubakar v. Joseph (2008) 13 NWLR Pg.1104 Pg. 307. This issue is resolved against the Appellant.
ISSUE FOUR
In paragraph 101 and 102 of the Appellant’s brief, the Appellant argued that the learned trial judge erred in law when he failed to consider the Appellant’s contention that the Respondents’ alleged 1.5% net profit interest in the Appellant’s interest in oil assets, which it did not inherit from BP, was void for not being in writing as required by the petroleum Act; for no ministerial consent having been sought or obtained as was required by law; and for being time and statute barred given that more than 12 years had elapsed between the time these proceedings were issued in February 2010 and 12th May, 1993 when the Appellant was granted OMLs 128 and 129, or alternatively 12th November, 1993 when the 1st Respondent entered into a net profit agreement with BP and when, on the “mirror image” theory canvassed by the Respondents at trial the Appellant came under an obligation to enter into a similar net profit interest agreement with the Respondents.
Counsel also argued that the learned trial judge also failed to consider, as contended in the alternative by the Appellant at trial, that any net profit interest of the Respondents in the Appellant’s oil and gas assets should be capped at US$4 Million. Senior counsel referred to these contentions as stated in paragraph 22.3, 20.5, 25.5 of Vol. 3 of the Record which is the amended Statement of Defence. Senior counsel insisted that the court cannot cherry pick its issues but must consider all issues submitted for determination. Counsel submitted that the failure of the trial judge to decide these issues led to a miscarriage of justice because it deprived the Appellant of the consideration of complete answers to the spurious claims against it.
In answer to the above complaint, learned senior counsel to the Respondents referred to the argument at the trial court that the oral agreement it reached with the BP/Statoil partnership was enforceable and it would amount to constructive fraud on the part of the Appellant to argue that it would not abide by the terms of the agreement merely because it was not in writing more so where the agreement between the parties was in line with government or public policy at the time.
Let us look closely at the judgment of the trial court to see whether indeed the court willfully ignored these defences put up by the Appellant at the trial. At 2124, 2126, 2160-2162 of the Record, Vol. 5, the learned trial judge held as follows:
“The Plaintiffs aver…that the Defendant refused and/or willfully defaulted in applying for the requisite statutory approval from the Ministry of Petroleum Resources to confirm the assignment of the plaintiffs’ leasehold interests…The Defendant denies any obligation to apply to the Ministry of Petroleum Resources in support of the Plaintiffs’ alleged 1.5% net profit agreement…I find as a fact that though Statoil initially, most probably following BP’s lead, indicated an intention or willingness to enter a long term Net Profit/Royalty agreement with Inducon… the parties never put pen to paper…in dealing with oral evidence probabilities, presumptions, surrounding circumstances etc, are to be looked into…I note also that apart from a Public Policy framework there is also a legal and regulatory framework within which Oil Industry Operators carry out their enterprise and activities. As ably pointed out by senior counsel for the Defendant, an interest in an Oil Prospecting Licence (OPL) or an Oil Mining Lease (OML) cannot be transferred to a Third Party without the prior consent of the Federal Ministry for petroleum Resources. See the Petroleum Act 1969 and the Petroleum (Drilling and Production) Regulations 1969.
Whatever the laws and regulations stipulated, the public policy framework enunciated by Dr. A.I. Oyekan MFR PW3 underpinned the conduct, exertions and commitments made by BP, Statoil and the Plaintiffs in this Nigerian Oil Industry Business Development effort with understandings and agreements were reached which though enforceable were unperfected in parts.”.
It is clear that the complaint that no finding was made by the trial court on the issue of whether the Respondents’ NP1 claim was void for not being in writing as required by the Petroleum Act and for non ministerial consent first sought and obtained is clearly unfounded. The trial judge held that the agreement was subsisting though unperfected in parts.
Let me say now that after a review of the evidence at the trial court, I am inclined to agree with learned Respondents counsel’s opinion in paragraph 13.4 of his brief. It was argued by the Respondents that the Appellant having derived benefit from the agreement in question cannot set up the statute of Frauds to avoid this obligation. That would amount to constructive fraud perpetrated on the Respondents, considering that the responsibility to obtain the consent of the minister in accordance with paragraph 14 of the 1st Schedule to the Petroleum Act was that of the Appellant as the holder of the license. That was why the Respondents sought for an order compelling the Appellant to comply with the petroleum Act in this regard.
The Appellant also complained that the trial court did not consider its contention that the Respondents’ NP1 claim was statute barred. However on page 2124 – 2128 of the record Vol. 5 the trial court reviewed the evidence on this point as follows:
“The plaintiffs therefore allege fraudulent misrepresentation; in particular the defendant fraudulently misrepresented to the Plaintiffs that they have a long term percentage interest in any oil acreage they obtain for the Defendant……. Fraudulent misrepresentations were made to the Nigerian regulatory authorities…..The Defendant it is averred, carried on with this pre and continued to mislead the Plaintiffs until production of crude oil commenced from the Agbami field……the Defendant denies any obligation to apply to the Ministry of Petroleum Resources in support of the plaintiffs, alleged 1.5%o net profit interest agreement…….the Defendant avers that it never represented to the Plaintiffs or either of them that the assignment of a leasehold interest to them was settled or contained in any such representation throughout until production started in Agbami field…that Nigerian regulators did not rely on any representation as to the plaintiffs, entitlement to a leasehold or other interest in any oil acreages awarded to the Defendant….”
The learned trial judge found at page 2158 of the record Vol. 5 as follows:
“And that is the nub: BP as the lead partner in Nigeria chose to collaborate with the 2nd Plaintiff in the push to develop business here and Statoil, obviously shorn of the strategic decision in this regard signed off on this.”
I have read the evidence on record. I am convinced that there was an oral agreement entered into when there was no production in any of the oil concessions and the written agreement was therefore contingent on production. Please note that in dealing with the credibility of oral evidence, one must take into consideration the probabilities, the presumptions and the surrounding circumstances guiding the parties when the alleged oral representation was made. The atmosphere of the relationship between the parties in dispute was copiously described by the Respondents, witnesses. The learned trial judge captured the essence of what happened when he opined on page 2162 of the record vol. 5 that:
“And particularly so, the awareness of certain stipulations appears to explain the newly initiated Statoil’s reluctance to deal with the plaintiffs post 1999 after Bp’s departure, but also after entry to the Nigerian Oil Industry had been secured.”
It is in my view unconscionable of the Appellant to attempt to perpetrate a hoax on the Respondents given the circumstances of this case. The equity is not a transferred interest but an embedded interest that came alive upon the commencement of production in the oil fields in which the Appellant currently has equity or operating interest.
It had been the contention of the Respondents that the NP1 came alive in 2008 when production commenced in the oil fields and the Appellants refused to recognise and register the Respondents interest in the proceeds of the oil fields.
I have to say that it is the statement of claim that determines whether an action is statute barred or not. In the Respondents’ amended statement of claim paragraph 27 at Pg.925 – 934 of the Record, the Respondents had pleaded that the cause of action arose in 2009 when they made a claim to an NP1 after production commenced from the oil fields in 2008. Paragraph 27 of the Respondents’ statement of claim is set out below on pg 929 vol. 3 of the Records:
“27. As a result thereby, the plaintiffs relied on these representations in entering, and continuing its relationship with the Defendant. However, after production had commenced from the Agbami Oil Field, by a letter dated the 8th of June, 2009, the Defendant fraudulently denied knowledge of the Plaintiffs in the first instance and also further denied the aforestated existence, business development efforts and relationship with the Plaintiffs.”
The Respondents then went on to plead particulars of fraud.
Also, we must note that where there is an allegation of fraud, the period of limitation commences from when the Respondents discovered the fraud. Thus the Respondents claim was not statute barred. See Williams v. Williams (2008) 10 NWLR Pt 1094 Pg.364 at 383.
It is my view that the cause of action arose in 2009 when a demand was made for the actualization of the promises between the parties.
On the 3rd complaint by the Appellant that the Respondents’ NP1 claim was capped at US$4m and that there was no findings on that fact, the learned trial judge had rejected in effect, the defence that the Respondents, claim was capped at US$4 Million hence the finding that the 1.5% ceded to Inducon by BP was binding on the Alliance. The trial court held at pg. 2160 Vol. 5 that:
“Clearly this was an agreement entered into when there was no production in any of the oil concession; and was therefore contingent on production under the aegis of production sharing contracts.”
After reading clauses 10(b) and (c) and 11(b) iii [ii) of Exhibit PE21 at page 1653 vol. 4 of the record, I am inclined to agree that based on Exhibit BB and the nature of a net profit interest claim, the entitlement of the Respondents could not be capped by a monetary sum after production started but is an equity stake in the oil concession expressed in terms of profit from the oil field.
It is clear that the Appellant was being economical with the truth when it claimed that the trial judge did not mention any of these issues in his Lordship’s judgment. This issue is resolved against the Appellant.
ISSUE FIVE
This is whether the trial judge had power to continue the interlocutory injunction granted prior to the trial of the action and final judgment or to grant a post judgment interlocutory injunction which was not sought by the Respondents. Counsel argued that the only relief sought by the Respondents in paragraph 38(xi) of the Amended Statement of Claim on page 933 – 934 of the Record Vol. 3 is as follows:
“An order of injunction compelling the Defendant (Appellant) to pay all income derived from all the upstream production available to the Defendant into an interest bearing account with a reputable financial institution within the jurisdiction of this court and subject to the directions of this Honourable Court, pending the determination of this action.”
Senior counsel argued that the trial court had no power to grant post judgment interest since proceedings came to an end on 6th December, 2010 when final judgment was delivered. The interlocutory injunction of 26th April, 2010 lapsed on 6th December, 2010. The court is functus officio after delivery of judgment and cannot grant any injunction except when it has been claimed in the writ of summons. He cited Aba South LG v. Nwajiobi (2008) 6 NWLR Pt. 1084 Pg. 503 at 525, Salau v. Pera-keji (2001) 13 NWLR Pt. 731 Pg. 602 at 612; Ikem v. Efamo (1997) 4 NWLR Pt.499 Pg. 318 at 327 – 328, Obioha v. Ibero (1994) 1 NWLR Pt.322 Pg. 503 at 520. He submitted that the court cannot exercise inherent powers outside statutory provisions.
In reply, learned senior counsel for the Respondents argued that at no time before, during and after the trial did the learned trial judge freeze the accounts of the Appellant. In the first instance, during the trial, the injunction of the court was directly in relation to the repatriation of proceeds and was also for the purpose of allowing the Nigerian regulatory authorities the opportunity of ascertaining the amount of proceeds from the concession. The Appellant had and still has access to its accounts. The order of the court stipulated that “relevant authorities are to certify exactly what those proceeds are on a monthly basis”.
Learned Respondents’ counsel explained that the order was concluded by the learned trial judge stating that: “This order does not restrict in any way the normal banking operations of the Defendant (now Appellant) as long as funds are retained within jurisdiction”. Further to that, on the 19th of May, 2010, upon an application to stay the order of 26th April, 2010, the trial court clarified the order by stating that: “The order does not in any way restrict the Defendant/Applicant’s (now Appellant) normal banking operation and it is without prejudice to the Defendant’s (now Appellant) due servicing of obligations to creditors locally and abroad, payment of services locally and abroad, or any other expenses incurred locally or abroad in relation to its operations in Nigeria”.
Let me say straight away that the complaints about the orders made by the trial judge are geared towards the orders made in the judgment. They were not extrinsic to the judgment. I agree with the Respondents, counsel that the Appellant’s arguments on the court being functus officio are not tenable. The general statement of the law is that a court is functus officio from reviewing or varying the form of its judgment after delivering final judgment and necessary consequential orders. In this case, there is no order of the trial court reviewing or varying its judgment. We note also that there has been no further proceedings apart from the Appellant’s application for stay which was remitted to the court of Appeal because the appeal had been entered. A court has the inherent jurisdiction to grant consequential orders so that proper effect is given to its judgment. A court therefore, is not functus officio in granting ancillary reliefs that will ensure that its judgment is complied with. The Plaintiff asked for account reliefs, therefore the trial court had the power and was not functus officio to grant consequential reliefs to ensure that the appointed auditor can properly carry out his duties in determining the actual proceeds from the oil concessions in issue and the actual proportion of the proceeds the Respondents are entitled to.
In Amaechi v. INEC (2008) 5 NWLR Pt. 1080 Pg.227 at pg. 393 -394, the Supreme Court held that:
“A consequential order is one giving effect to the judgment which it follows; it is not an order made subsequent to a judgment, which detracts from the judgment or contains extraneous matter. Thus, where a person has not specifically asked for a relief from a trial court, a trial court has power to grant such a relief as a consequential relief. Atolagbe v. Shorun (1985) 1 NWLR Pt. 2 Pg. 360; Obayagbona v. Obazee (1972) 5 SC 247; Garba v. University of Maiduguri (1986) 1 NWLR Pt. 18 Pg. 550; Okupe v. FBIR (1974) 1 ALL NLR 314 referred to.”
I am of the view that the consequential orders which give effect to the main orders sought were proper and in order. This issue is resolved against the appellant.
ISSUE SIX
On this issue, learned senior counsel to the Appellant claimed that the learned trial judge misdirected himself in law and in fact when he created a 1.5% equity interest in favour of the Respondents out of the Appellant’s oil and gas interests solely on the basis that such an outcome was “consistent with public policy at the time”. He argued that “consistency” is neither a theory of civil liability nor a method of acquisition of property rights under Nigerian law and cannot generate an equity interest for the Respondents when there was no agreement for or grant of such an interest.
He further argued that the evidence of Dr. Oyekan P.W.3 relied upon by the trial judge was not consistent with the findings that there was public policy of indigenous representation and participation in oil exploration or production in Nigeria at the material time. He protested that the learned trial judge ignored the evidence of Gbenga Biobaku D.W.4 to the effect that at the material time there was no requirement that foreign owned companies such as the Appellant’s parent company could not obtain oil blocks in Nigeria unless they partnered with a local company such as the 1st Respondent.
He submitted that if the learned trial judge had evaluated the evidence of Biobaku alongside Oyekan’s he would have found that no such policy existed. He argued that the contractual liability of the Appellant to the Respondent did not exceed the remuneration and fees specified in consultancy agreement dated 15th January, 1991. Learned Appellant’s counsel argued that the decision of the learned judge amounts to an unlawful expropriation under customary international law and is also a violation of section 25 of the Nigeria Investment Promotion Commission [NIPC) Act, which guarantees foreign owned companies that their assets will not be acquired by the Federal Government unless the acquisition is in the national interest or for a public purpose under a law that makes provision for inter alia prompt payment of a fair and adequate compensation. Senior counsel postulated that the Federal High Court is a manifestation of the Nigerian Government and is bound by section 25 of the NIPC Act and by Customary International Law. The decision of the lower court, which expropriated 1.5% of the Appellant’s oil and gas interests and gave the same to the Respondents compulsorily without any compensation, is a violation both of Nigeria’s obligations under Customary International Law and section 25 of the NIPC Act.
Learned Respondents’ counsel argued in reply that Dr. Oyekan MFR a senior civil servant who served the Federal Government with distinction is a credible witness with regard to the responsibility of the Ministry of Petroleum he was charged with at the time. He reminded us that DW4 who is on the payroll of the Appellant as its external solicitor was just two years post call at the material time of the facts in contention and had no involvement in government policy decisions. He argued that the evidence of PW3, Dr. Oyekan was largely unchallenged. Evidence of DW4, Mr. Biobaku was not clear in this regard and spoke more to the policy in 2005, which is a period not in issue, and therefore irrelevant.
He urged this court to hold that the evidence of Dr. Oyekan was largely unchallenged while the evidence of Gbenga Biobaku spoke of what obtained in 2005 rather than what obtained in 1991 – 1993 the period when the understanding between the parties which led to the contract occurred. Learned Respondents’ counsel argued that the discretion of ascertaining who is a truthful witness rests on the trial court and cannot be interfered with. The trial court need not comment on evidence with no probative value. He cited Ajadi v. Ajibola (2004) 16 NWLR Pt. 1156 Pg.462.
Learned Respondents’ counsel argued that the issue of expropriation does not arise and that the Nigeria Investment Promotion Act NIPC does not apply here. Counsel submitted that the Act deals with a situation where the Government takes over the assets of a foreign investor, without payment of compensation. If the Appellant had gone to cite subsection 2 of the NPIC Act, it would have been clear that it does not apply here.
Let me first deal with the findings of fact by the trial judge to the effect that the equity of 1.5% interest in favour of the Respondent out of the Appellant’s oil and gas interests was consistent with the public policy at the time. The position of the Appellant is that there was no public policy in place at the time under which the Appellant was obliged to cede 1.5% of its interests in gas and oil exploration to the Respondent. Let us look at the witness statement; that is, the lead evidence of Dr. Oyekan MFR on pages 940 – 941; Vol. 3 of the record. It is obvious that Dr. Abdulahi Oyekan MFR was the Director of the Department of Petroleum Resources at the material time and was charged with implementing Government Policy at the material time which was 1990 – 1994. Dr. Oyekan’s testimony regarding the existence of a policy was a direct one and I find no reason to disbelieve it as also the learned trial judge did not disbelieve him. It would be rather strange to believe the evidence of Mr. Gbenga Biobaku who is external solicitor to the Appellant and had nothing to do with the parties at the material time to know the nature of their interaction or how it was or was not propelled by public policy. I believe as credible the evidence of P.W.3 – Dr. Abdullahi Oyekan MFR on page 1419 – 1421 Vol. 4 of the record who was the officer in charge of implementing the policy and was actually the government official who pre-qualified the BP/Statoil partnership and signed the grant of the allocation to it, after believing the representation made to the Department of petroleum Resources that the Respondents had a minor percentage stake in the business. It is trite that when faced with conflicting evidence on the same matter the discretion of which evidence to believe is exclusively that of the trial judge. See Ajadi v. Ajibola supra; FGN v. Zebbra Energy Ltd (2002) 18 NWLR Pt. 798 Pg. 162.
On the issue of whether a public policy existed in relation to the issue in controversy, the Supreme Court has held that the Petroleum Industry in Nigeria is governed by public policy. In Okonkwo v. Okagbue (1994) 9 NWLR Pt. 368 Pg. 301, the Supreme Court defined public policy as the ideals which for the time being prevail in any community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest. Public policy holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against public good, which may be termed, as it sometimes has been, the policy of the law, or policy in relation to the administration of the law.
The arguments in relation to expropriation are quite irrelevant in the circumstances of this case. This is because expropriation is defined in the Cambridge Advance Learners Dictionary as “To take away money or property especially for public use without payment to the owner, or for personal use illegally”. I agree with learned Respondents’ counsel that the Nigerian Investment Promotion commission Act NPIC does not apply in this case. Section 25 of the NPIC Act refers to ownership of capital investment in public companies which is specifically defined as opposed to equity interest in oil concessions.
The fact of the matter as argued by the Respondents’ counsel and with which I agree is that by paragraph 35 of the First Schedule to the Petroleum Act, the law allows the creation of leasehold interests and gives the Federal Government the right to enter into a concession upon the conversion from an oil prospecting licence to oil mining lease. Usually title in these concessions is held by NNPC on behalf of the Federal Government. The interest of the foreign companies crystallizes when there is production from the field. Such interest cannot be expropriated as a matter of policy if not, all the international oil companies would be wary of doing business with Nigeria. It is conceded that the recent policy as enumerated by D.W.4 is that where the Federal Government required a local company to partner a foreign company in an oil block, it expressly named the local company as an LCV, as it did, for example, in the letter award of OPL 315 to the Petrobras Concortium (of which the Appellant was a member) dated 5th September, 2005, which named ASK Petroleum Company Ltd as the LCV.
However, there is no proof that, that was the policy between 1990 – 1993, when the oral agreement between the parties was initially made. My understanding of the facts here is that the 2nd Respondent was a consultant to the Alliance of BP/Statoil to procure oil prospecting licenses with an agreed remuneration and fees for such services. However where fortuitously the oil fields or blocks turn out to be fruitful and move from the realm of prospecting to production, then the Respondent was entitled to an equity share in the proceeds. I have read the Respondent’s letter Exhibit D24 at page 1980 of the record. A comprehensive reading does not appear to me to be an admission of the fact that there was no formal agreement but rather a subtle protest that no formal agreement had been reached. It is important to emphasis that all the agreements gleefully referred to by the Appellants had to do with the scenario in 2005. I am of the view that there was a public policy framework as enunciated by P.W.3. Under cross examination he had admitted that in the 1990s the Federal Government had encouraged foreign companies which had no presence in Nigeria to invest and even though there was no written law as such, the Department of Petroleum Resources usually looked to see that foreigners came with Nigerian stakeholders. The issue whether there was in fact a public policy framework under which the parties operated with the understanding that when the prospecting bore fruit, that the Nigerian consultant or stakeholder would have a share has to be resolved in favour of the Respondents and against the Appellant.
ISSUE SEVEN
On this issue, the Appellant complained of two concurrent wrongs, that is, wrongful admission and wrongful exclusion of evidence. On wrongful exclusion of evidence, Appellant’s counsel complained that the rejected document was pleaded in paragraph 25.7 of the Appellant’s amended statement of defence on page 1152 – 1153 of the record. It was sought to be tendered through Mr. Haland, the Appellant’s Managing Director. The document was relevant to the issue of whether the cap of $4 Million contained in clause II(a) of the net profit agreement dated 12th November, 2010 between BP and the 1st Respondent was removed by the 30th November, 1995 latter agreement. BP had provided the document to show the contents of the net interest agreement between it and the Respondents. The learned trial judge upheld the objection of Respondents’ counsel on the basis that no employee of BP came from England to tender same. This was inspite of the fact that the 2nd Respondent was in court and a party to the proceedings who did not dispute the authenticity of the original tendered. Counsel submitted that the need to call the maker of a document arises where the authenticity of the document is challenged. In such circumstances, the maker of the document should be called to support the document; otherwise no weight should be attached to it. Learned senior counsel insisted that the authenticity of the rejected document was never impugned. He cited NBC Plc v. Ubani (2009) 3 NWLR Pt.1124 Pg. 512 at 541; Chitex v. O.B. (Nig) Ltd (2005) 14 NWLR Pt. 945 Pg. 392 at 411. He submitted that the document was relevant to the proceedings, the trial court was wrong to have rejected it. He cited Igunbor v. Obianke (1976) 9 & 10 SC 179. Senior counsel urged that in view of the impracticability and expense in bringing someone from England to tender the document, the proviso to section 91(1) and 91(2)(a) of the Evidence Act is applicable and the document ought not to have been rejected.
Learned senior counsel for the Respondents in reply noted that the original copy of the Appellant’s document dated the 30th November, 1995 which was tendered by the Appellant but rejected by the trial court is completely different from the Respondents’ document titled the Advance Payment Scheme between BP and the Respondents dated the 30th November, 1995 which was tendered by the Respondents and admitted by the trial court as Exhibit BB.
Senior counsel further argued that the rejected document failed to meet the conditions for admissibility laid down by the Evidence Act. It was also argued that the Appellant’s amended statement of defence dated 28th May, 2010 on page 1167 – 1168 vol. B of the record shows that the document was not pleaded nor was any fact in the document pleaded. It was only in paragraph 25.7 of the amended statement of defence that Appellant joined issues on the authenticity of Exhibit BB. Senior counsel stated that apart from the evidence being unpleaded, the Appellant did not lay any foundation to enable the application of the proviso and section 91(1) of the Evidence Act. He argued that the document amounted to inadmissible documentary hearsay under the circumstances.
I have looked at the record in order to determine whether or not the document in issue was pleaded and whether it was relevant and admissible. The Appellant’s amended statement of defence is on page 1127 -1157 Vol. 3 of the Record. We have to determine whether the document in issue passed the relevancy test.
I have looked at paragraph 25.7 where the Appellant claimed the document was pleaded. That paragraph specifically challenged the Respondents’ document 14 and denied its genuineness. The paragraph is on page 1152 – 1153 of the record. However, page 1168 of the record shows that item 13 of the list of documents to be tendered by the Appellant is “Amendment to the Net Profit Interest Agreement between the Plaintiffs and BP dated 30th November, 1995”. The test of admissibility is relevance. A document is relevant only when it has been pleaded. I agree with learned Appellant’s counsel that the key to admissibility of documentary evidence under Nigerian law is relevance. See Okonji v. Njokanma (1999) 14 NWLR Pt. 638 Pg. 250. The original copy, which was ordinarily the best evidence of that document was tendered in court. It was held in Daggash v. Bulama, (2004) 14 NWLR Pt. 891 Pg. 164 at 237 that what the court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue. In other words, a document may be admissible in evidence if it satisfies the prescribed condition for admissibility for that purpose. The weight to be attached to the admitted evidence is however a different matter.
The general rule is that a document should generally be tendered through its maker: vide Section 91(1) of the Evidence Act. The rationale for the general rule is that the maker is the person who can normally answer questions regarding the document and so his attendance may be necessary to facilitate cross-examination. There are a number of exceptions to this general rule such as when the maker is dead or is unfit by reason of his bodily or mental condition to attend as a witness or if he is beyond the seas and it is not reasonably practicable to secure his attendance etc. In all such circumstances, a non-maker can tender a document in court.
In the hierarchy of adjectival law, probative value comes later after admissibility. See Omega Bank v. OBC Ltd (2005) 8 NWLR Pt. 928 Pg.547 at 582. There is certainly no inflexible rule that makers of documents must necessarily be called at all times to tender documents in civil proceedings. If the purpose of calling a person as a witness is solely for him to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the document. See Magaji v. Nigerian Army (2008) 8 NWLR Pt.1089 Pg. 338 at 395. In Magaji v. Nigerian Army, the Supreme Court held that if the purpose of calling a person as a witness is just for him to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the document. See Iniama v. Akpabio (2008) NWLR Pt. 1089 Pg. 338.
In the circumstances of this case, it appears that the document was never pleaded directly. However, having read the pleadings I see that some facts in the pleadings seem to allude to the contents of the document.
Therefore I can safely hold that the facts have been pleaded. Facts and not evidence to prove the facts need only be pleaded.
In applying the proviso to section 91(1) of the Evidence Act which states that the conditions in 91(1) (a) need not be satisfied, the party tendering the statement must lay foundation satisfying the court that for some reason the condition that the maker of the statement shall be called as witness could not be satisfied. Without laying foundation, (that is satisfying the conditions of the proviso) the court may refuse to admit the statement. However, the statement must not be marked rejected since it is not intrinsically inadmissible being pleaded and relevant and may be represented to the court and proper foundation laid to secure its admissibility. The document was rejected solely on the basis that the method of tendering it violated section 91(b) of the Evidence Act.
I have read the proceedings. I do not think the learned trial judge had any choice in the circumstances presented to him but to refuse to admit the document. The proceedings relating to this is on page 70-72 of the record. Even though the Respondents had notified that they would object to the document, the Appellant did not lay any foundation for its admissibility, rather it did nothing to comply with the proviso to section 91(1). I cannot find fault with the decision of the learned trial judge in the circumstances.
Learned Appellant’s counsel argued that the court was wrong to admit in evidence a photocopy of a document dated 30th November, 1995 as Exhibit BB despite the Appellant’s objection to its authenticity and admissibility. Counsel argued that the feeble reason given for failure to produce the original should not have been accepted by the court. Counsel argued that in U.T.B. v. Awanzigana Ent Ltd (1994) 6 NWLR Pt. 348 Pg. 56 at 79, it was held that a court is entitled and competent to form its own opinion by examining and comparing documents when there is an allegation of forgery – even if it means checking blunt ends, ink deposits at beginnings or ends, or if there is any evidence of pen lifts. The court is therefore obliged to examine and compare disputed signatures against other relevant document before forming an opinion. He cited Ngige v. Obi (2006) 14 NWLR Pt. 999 Pg. 66.
Learned Respondents’ counsel explained in reply that though both Exhibit BB and the document rejected are dated the same day with similar contents to some extent, they are not the same documents nor different versions of the same document. He reminded us of the fact that the Appellant waived its right to inspect the documents listed in the Notice to produce Documents for Inspection. Counsel submitted that Exhibit BB is admissible since it had been identified by P.W.1 one of the signatories, it was listed and had been frontloaded in advance having been hitherto pleaded in the Respondents’ Amended Statement of claim at Pg. 133-137 in Vol. 1 of the record. Counsel argued that the allegation that the document is a forgery must be proved beyond reasonable doubt as provided by section 138(1) & (2) of the Evidence Act.
Learned Respondents’ counsel opined that there is no provision under the Evidence Act which makes a document inadmissible on the grounds that its authenticity is challenged. Having raised this objection however, the Appellant failed to provide sufficient material or any reason at all to the trial court upon which it would have rejected the document or otherwise ruled in its favour. He cited Nwobodo v. Onoh (1984) 1 SCNLR 1.
I have to agree with learned Respondents’ counsel that an allegation that a document is a forgery is a criminal allegation that must be proved beyond reasonable doubt. There is no point throwing up wild accusations that were debunked during the trial and to expect the trial judge to turn into a fingerprint expert or wizard who would know which document is fake or not. Nevertheless, I am constrained to note that section 97(1) (c) & (2) (a) of the Evidence Act applies in that it allows the admission of secondary evidence when the original document is lost and cannot be found. See the case of INEC v. AC (2009) 2 NWLR (Pt. 1126) 524 at 626. Exhibit BB had been pleaded in the Respondents’ amended statement of claim and frontloaded with the bundle of documents to be relied upon. The material facts deposed to therein were contained in the written statement on oath of PW1.
In Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250, the court held that one of the criteria for the admissibility of a document is whether the document was pleaded by the party (ies) to the proceedings. Exhibit BB is relevant to the Respondents’ case as it was an amendment to the Exhibit PE21 tendered by the Respondents.
I think the whole brouhaha about this document is that it strengthens the case of the Respondents in that it contains a clause to the effect that the buy-out option in the NPIA only applies to the pre-production stage of the oil concessions. Thus, since some of the oil concessions have started production, the buy-out option of US$4Million (Four Million United States Dollars) in the NPIA was no longer applicable and the NPIA cannot be capped at US$4Million. Exhibit BB therefore corroborates the evidence of PW1, that the NPIA can no longer be capped at a monetary sum in respect of the oilfields that are producing. I resolve this issue in favour of the Respondents.
Issue eight is the omnibus ground of appeal to the effect that the judgment is against the weight of evidence. I have read the arguments of learned senior counsel for the Appellant and they are mere repetitions of previous argument ably and copiously made and answered to which I have rendered opinion under the previous issues distilled for determination. In the circumstances, the issue is surplusage and I will not bother to repeat opinion already rendered by me.
In totality the appeal lacks merit and it is hereby dismissed. I affirm the judgment of Archibong J. in suit No. FHC/L/CS/224/2010 and all the Orders made therein. I award =N=50,000 costs to the Respondents against the Appellant.
JOHN INYANG OKORO, J.C.A.: I was obliged a copy of the illuminating Judgment of my learned brother, Ogunwumiju, JCA just delivered and I agree that this appeal lacks merit and ought to be dismissed. My learned brother has meticulously and quite efficiently resolved all the salient issues submitted by the parties for the determination of this appeal and it appears there is nothing new left for me to say. Be that as it may, I shall add a few words of mine in support of the Judgment.
The Appellant has laboured, though unsuccessfully to convince this court that it was not privy to the contract between BP and the 2nd Respondent in respect of the 1.5% net profit interest which was to accrue to the Respondents upon commencement of oil production. But one issue which stands out very clear is that the Appellant and BP had an alliance which was a partnership on a 50:50 profit sharing formular. The Appellant also knew or ought to have known the relationship between the 2nd Respondent and BP concerning the 1.5% net profit interest in favour of the former. So, when BP pulled out and the Appellant took over both the benefits and liabilities of BP, it is my view that the Appellant also took over the agreement between the 2nd Respondent and BP. After all, evidence abound that it was the 2nd Respondent who facilitated the business transaction which he is now being denied the benefits accruing therefrom. I hold that this will amount to injustice and should not be allowed to stand. I agree with the learned trial Judge that the 50% interest of BP, now taken over by the Appellant, was encumbered with the 1.5% net profit interest in favour of the Respondents and I hold that the said interest subsists and is enforceable. Thus, the argument that the Appellant was not privy to the contract between BP and the 2nd Respondent is untenable.
Based on the above and the further reasons in the lead Judgment of my learned brother, Ogunwumiiu, JCA, I hold that this appeal lacks merit and is hereby dismissed by me. I also award costs of N50,000.00 in favour of the Respondents.
SIDI DAUDA BAGE, J.C.A.: I had the great honour of reading in draft the lucid judgment of my learned brother OGUNWUNMIJU, JCA. I agree that this appeal lacks merit. I intend to add a few words of my own in support.
(1) On the issue of findings of facts by the trial court. Our duty as an appellate court is not to review or decide on findings of facts by the trial court, but only to sit to review judges’ decision on points of law being bound by the facts which they find, provided always that there is evidence on which the judges can come to the conclusions of fact at which they arrive. See: Bracegirdle vs. Oxley (1947) All E.R. 126, the observations of Denning J. (as he was then) captured well this role. He stated:
“The question whether a determination by a tribunal is a determination on point of fact or in point of law frequently occurs. On such a question, there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deduced by a process of reasoning from them. The determination of primary facts is always a question of facts. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from facts are sometimes conclusions of fact and sometimes conclusions of Law —
The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusions drawn by these justices from the primary facts were not one that could be drawn from them.”
I do agree with the lead judgment that this court will not interfere with the findings of facts in this appeal by the lower court, as the conclusions reached by it are drawn from the primary facts of this case. On this point also see: Kingman vs. Seager (1938) 1 K.B. 397; Durell vs. Scott (1939) 1 All E. R. 183; also the decision of the Supreme Court of Nigeria in Nafiu Rabiu vs. Kano State (1980) 8 – 11 S.C. 130 at pp 222 – 223.
(2) On fair hearing and fair trial complained about by the Appellants in this appeal, I agree with the lead judgment that the appellants suffered not set backs on either at trial.
What is fair hearing? The Supreme Court in Paul Iyopun Unongo vs. Aper Aku & Ors (1983) 11 S.C. 129 at 179 the sequential jurist Eso JSC (as he was then) stated:
”What is fair hearing? In Isiyaku Mohammed vs. Kano N.A. (1968) 1 All N.L.R. 42, Ademola C.J.N. delivering the judgment of Supreme Court said and I respectfully adopt this dictum:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
Again the Supreme Court per another eminent jurist Idigbe (JSC) (of blessed memory) in R. Ariori & Ors vs. Muraino B.O. Elemo & Ors. (1983) 1 SC 13 at pp 19 -20 on what constitutes “Fair trial”, stated:
“More than that, however, is the fact that the right to fair trial is, to my mind, much more than a personal right of the subject; public policy demands that every subject is entitled to a “fair trial” and that trials in courts must conform with settled principles of justice. So that although the right to a “speedy trial” (which really is an aspect of “fair trial”) enures primarily for the benefit of a party to a suit in court, the courts ought not to hold that such a party has waived that right where such a waiver results in a miscarriage of justice or in the trial not conforming with settled principles of justice (i.e. trial according to accepted principles of the law).”
I am in one with the lead judgment that the appellants neither suffered a setback of fair hearing or fair trial at the court of trial.
For these and the more elaborate details contained in the lead judgment, I too have dismissed this appeal for totally lacking in merit, and also abide with the order as to cost contained therein.
Appearances
Fidelis Odita SAN
Igonikan Whyte (Miss),
Miss Thelma Mafua,
Lelly Agbonze,
Miss Lara Ogungbemile,
Mr. ChukwudumoguFor Appellant
AND
Uche Nwokedi SAN
Miss Ukamaka Obiorah and
Mr. AsimiyuFor Respondent
